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hris Perri Law is a criminal defense law firm located in Austin, Texas.

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Chris' Blog

The blog of Chris Perri Law, written by Chris Perri and Shannon Perri. Read the latest in exciting cases where justice is served.

Filtering by Category: Public Intoxication

Three things to do if you get pulled over by a cop—and you’ve been drinking.

Chris Perri

 Photograph by  Jeffrey Smith

Photograph by Jeffrey Smith

According to the National Highway Traffic Safety Administration, just under 1% of licensed drivers will be arrested at some point in their lives for driving while intoxicated. The chance of it happening to you may seem slim, but like all statistics, it happens to someone.

Hopefully you never find yourself pulled over with a flashlight at your window, but if you do, it’s better to know what to expect and be prepared. It could make the difference in the outcome of your case.

1. Accept that you may get arrested. Even if you’ve had just one drink, if a cop smells alcohol on your breath, you’re now their responsibility. They don’t want to be liable for letting someone who is potentially drunk on the road. If you refuse to blow into the breathalyzer, you will almost certainly get arrested, but that doesn’t necessarily mean blowing is the right call, as the accuracy behind the machines is questionable. Stay calm and wrap your mind around the possibility of one night in jail. Remember, an arrest does not mean a conviction.

2. Start building your defense—now. Your entire interaction with the cop is being recorded and will be used in determining the outcome of your case. Be polite to the officer, speak minimally, and consider if blowing into the breathalyzer and/or performing the sobriety tests will help or hurt your case. It can be tempting to try the tests to prove your innocence, but, remember, they’re challenging even when sober, so if you’ve been drinking, even lightly, it’s possible that attempting the tests will make you appear more inebriated than you are, especially if you have a medical condition. That’s why if you’ve accepted you might go to jail and focus on providing as little incriminating evidence against yourself as possible, you’ll be better off in the long run. Ultimately, it’s your call and your right to decide how to proceed in the moment. It’s also worth nothing that refusing the tests may allow the state to suspend your driver’s license. Still, a good criminal defense attorney can usually help you get an occupational license.

3. Remind yourself that this moment will pass. You are going to be okay. Assuming no one was hurt, the worst part of this experience will be the arrest. People in this position often feel ashamed, alone, and scared. It’s important to remember that you will get through this. You are more than just one bad night. And if you hire a qualified, compassionate defense lawyer, you’ll have support for the rest of the process. For some, a DWI arrest is a turning point for the better. The experience can be a wake-up call to address a problem, while for others it’s a reminder that none of us are perfect. And sometimes, it was just an unfair arrest. Obviously, no one wants to spend the night in jail, but remembering that it won’t last forever and there will be support on the other side often helps people make it through.

If you are someone you care about has been arrested for a DWI or another crime, call criminal defense attorney Chris Perri at (512)917-4378 for expert guidance.

Breath Test Machines: Less Reliable Than You Think

Chris Perri

 Chris Perri, next to his very own breathalyzer.

Chris Perri, next to his very own breathalyzer.

In DWI investigations, breath test results are very common evidence. Although I advise clients to refuse to provide a sample of their breath, the case isn’t over just because the machine says that the sample is over .08 BAC.

At the outset, it’s important to realize that BAC means blood alcohol concentration, not breath alcohol concentration. Breath test science relies on the assumption that it can obtain a reliable breath alcohol concentration that mirrors a particular person’s blood alcohol concentration. This assumption is fraught with difficulties, as I’ll explain below.

Let’s start with a very simplified description of the mechanics of the breath-test machine (also known as an intoxilyzer or breathalyzer). An arrested person blows into the machine, which takes this breath sample and shoots it through a tube that’s then injected with infrared light. Because alcohol particles block infrared light, the machine detects the amount of alcohol in a subject’s breath by determining how much of the infrared light has been blocked. It then takes this number, makes some calculations, and reports a breath alcohol concentration.

The calculation of this breath alcohol concentration is problematic because there’s a lot less alcohol in the breath than in the blood. For example, in an average person, the number of grams of alcohol in 1 part of the blood is equivalent to the number of grams of alcohol in 2100 parts of breath. This 1:2100 ratio is known as a “partition rate.” So, while a person’s blood alcohol concentration is defined as the number of grams of alcohol in 100 milliliters of blood, that same person’s breath alcohol concentration is defined as the number of grams of alcohol in 210 liters of breath. (Note: 100 milliliters x 2100 = 210 liters). In other words, if you have .08 grams of alcohol in 100 milliliters of your blood, then it’s assumed that you have .08 grams of alcohol in 210 liters of your breath.

While it’s not hard for police to obtain 100 milliliters of your blood, it’s impossible for them to obtain 210 liters of your breath (think about a 1 liter bottle and imagine filling up 210 of those bottles with your breath). For this reason, the breath test machine must multiply any amount of alcohol that it detects by a very large number. As an example, if you provide the machine with one liter of your breath, then the machine multiplies the amount of alcohol it detects by 210 in order to determine the number of grams of alcohol per 210 liters of your breath. This calculation is then reported as your BAC.

Consequently, any error by the machine in determining the amount of alcohol in a given sample would be exacerbated when it multiplies that incorrect number by two-hundred-fold. Such errors can occur when the machine interprets non-alcoholic particles in the breath as alcohol. For example, the machine cannot distinguish acetone (a common substance in the breath of diabetics) from alcohol. Or, imagine the complication of a stray particle of liquid alcohol entering the machine in the form of spit. Any error in the initial measurement of alcohol will render the entire breath test unreliable.

 Photograph courtesy of Oregon Dept. of Transportation

Photograph courtesy of Oregon Dept. of Transportation

For my next point, let’s give the machine the benefit of the doubt and assume that it can accurately measure the quantity of alcohol in a person’s breath. Even then, the machine makes a critical and troublesome assumption: that the subject’s partition rate is 1:2100 (recall from above that this means that the amount of alcohol in one part of blood is equal to the amount of alcohol in 2100 parts of breath). This assumption is not true across the population, as studies show that partition rates of normal people vary from 1:1100 to 1:3000.

As an illustration, let’s take a hypothetical subject arrested for DWI and call her Sue. She has a partition rate of 1:1100, which means that the number of grams of alcohol in 1 part of Sue’s blood is the equivalent of the number of grams of alcohol in 1100 parts of her breath. On this particular evening, Sue has consumed enough alcohol that her BAC is .06 grams of alcohol per 100 milliliters of blood. Since her partition rate is 1:1100, there would also be .06 grams of alcohol in 110 liters of her breath (note: 100 milliliters multiplied by 1100 equals 110 liters).However, the breath machine is going to overestimate the BAC by nearly a factor of two. Here’s why:

When Sue takes a breath test, the machine is programmed to incorrectly assume that her partition rate is 1:2100. As a result, it will determine the number of grams of alcohol in 210 liters of her breath. Since Sue’s correct BAC is .06 grams of alcohol per 110 liters of breath (due to her partition rate of 1:1100), she has .11 grams of alcohol per 210 liters of her breath. Due to the machine’s inaccurate assumption that Sue’s partition rate is 1:2100 instead of 1:1100, the breath-test machine will report a BAC of .11, which is nearly twice as high as her actual BAC of .06. This inaccuracy results because the machine is improperly measuring the number of grams of alcohol per 210 liters of Sue’s breath, as opposed to the number of grams of alcohol per 110 liters of her breath. Thus, the machine’s assumption that everyone has a partition rate of 1:2100 creates a critical error by reporting that Sue is intoxicated even though she’s actually below the legal limit of .08 BAC.

Finally, it’s important to remember that it’s only illegal to be intoxicated while driving. It’s not a crime to be intoxicated 10 minutes, 30 minutes, or an hour after operating a motor vehicle. But these chemical tests usually occur over an hour after driving, and the prosecution has the burden of proving how that BAC measurement relates to the time of driving. Unless law enforcement knows a lot of information about a particular person (e.g., number of drinks consumed, when the drinks were consumed, the type of alcohol consumed, amount of food consumed, when food was consumed, etc.), it’s impossible to conduct a reliable retrograde extrapolation, which is the science of determining a past BAC level based on a known BAC level. In other words, if the breath test machine reports that a person has a .11 BAC over an hour after driving, we don’t know whether the person’s BAC at the time of driving was below, above, or the same as the level reported by the machine.

While breath tests are an important tool for law enforcement in that they give a ballpark figure about an arrested person’s intoxication level, it’s a common misconception that a breath test machine provides an exact measurement of a person’s BAC at the time of driving. If you or a loved one have been arrested for DWI and submitted to a breath test that reported a BAC over .08, don’t despair. Call an experienced criminal defense attorney to fight the machine’s potentially inaccurate result.

You may not go to jail for pot possession in Austin, but you can’t ignore the ticket

Chris Perri

It’s a beautiful December day in Austin, and Sue, a student at the University of Texas, wants to celebrate the end of the semester with friends at the Greenbelt. While relaxing in the 70-degree weather near a swimming hole, one of Sue’s friends lights up a joint. Sue doesn’t usually smoke pot, but she’s cutting loose today, so she closes her eyes as she takes a long drag off of the joint, the stresses of the semester exhaling out of her with the sweet smoke of her friend’s kindbud. She then opens her eyes, and her momentary relaxation gives way to full-fledged panic as she spots a uniformed police officer on a bicycle stopped on a nearby trail. The officer calls out for her to bring him the joint. Sue’s mind and heart race, as she remembers what happened to her older brother in their small town where he was arrested for marijuana possession and spent the night in jail.

The cop sternly warns Sue about the illegality of smoking marijuana: “This isn’t Colorado, young lady.” However, to her delight, he bikes off after handing her a citation that looks almost exactly like a speeding ticket. Sue can’t believe her luck in not getting arrested! Maybe she won’t even have to tell her parents. There’s a date listed on the ticket to report to “Justice of the Peace – Precinct 5” on December 22. Sue’s going to be back home for the holidays by then, so she later tosses the ticket on a stack of old books in her apartment, figuring that she can just deal with it when she returns to school in January for the spring semester.

 

Given that the ticket doesn’t look a whole different than a traffic citation, it’s understandable that Sue might think it’s no big deal. In reality, Sue’s offense is a class B misdemeanor, which is punishable by up to 180 days in the county jail and a $2,000 fine. Unlike most counties in Texas, where you’ll be cuffed and carted off to jail for anything worse than a class C misdemeanor traffic offense, Travis County is different. Here, the police are authorized to issue tickets for misdemeanor marijuana possession (four ounces or less), along with a few other class B misdemeanors (driving with license invalid, theft, graffiti, criminal mischief). These tickets are called “field-release citations” because the police release the defendants without booking them into jail. The rationale behind this policy is that arresting people takes several hours, resulting in fewer police officers patrolling the streets.

However, just because Sue received a citation doesn’t mean that she’s avoiding an arrest record. Instead, the arrest occurs during what is called a “jail walkthrough” when Sue reports to the Justice of the Peace at the time designated on her ticket. Below, I’ve outlined the steps of the process:

1.     Report to Justice of the Peace – Precinct 5 (located at 1000 Guadalupe Street in downtown Austin) to receive paperwork and instructions about the walkthrough process.

2.     Report to Pretrial Services in order to apply for a personal bond.

3.     Return to the Justice of the Peace, who will magistrate the defendant, meaning that the defendant is informed about constitutional rights and the penalty range of the offense.

4.     Obtain approval of the personal bond from the Justice of the Peace.

5.     Report to the Travis County Sheriff’s Office at their bonding desk in the courthouse.

Upon reporting to the sheriff, Sue is officially arrested. The sheriff’s deputy would take her fingerprints and a mugshot. Sue would then be released from custody without ever being handcuffed. She would also receive a copy of her personal bond with a court date.

Following this “arrest,” Sue’s case would be assigned to one of the county courts-at-law, and her lawyer could then begin resolving your case by requesting discovery materials (offense reports, video/audio of the incident, etc.) and negotiating with the prosecutor.

Like many people issued similar citations, Sue doesn’t immediately realize the importance of reporting to the Justice of the Peace on the date and time designated on the ticket. This is a very bad idea because failure to appear results in an arrest warrant. There is no “jail walkthrough” for Sue if she is later arrested on a warrant, and the process of getting booked in and out of jail would take 12-24 hours. Her initial fear of spending a night in jail would become a reality.

Here’s what Sue should do immediately upon receiving the citation: contact an experienced attorney, such as Chris Perri Law, to assist her with the jail walkthrough process. An attorney can waive the third step of the process (magistration by the judge) in order to ensure that Sue is one of the first people to report to the sheriff’s office for the booking procedures. Often, Chris Perri Law can get somebody through the entire process in less than an hour. Without an attorney, the process can take up to four hours because there’s often a long line of people with similar tickets, and the sheriff’s office only has two deputies (at most) working on the walkthrough process at any given time.

Chris Perri Law also would assist Sue in resolving her case in a manner that leads to an eventual expunction of her arrest record. Even though Sue might feel like she was never arrested because the jail booking procedure was so quick, information about the offense is automatically forwarded to the Department of Public Safety (DPS), who enters it into their crime records database. Background checks will reveal the incident unless Sue successfully expunges the records of the arrest. Given that she’ll be graduating from UT and on the job market in a few years, it’s very important that Sue hires an experienced attorney who knows how to ensure that her arrest record from this incident is ultimately wiped clean.


***Sue is not a real person.

How to Avoid (or Deal With) Summertime Public Intoxication Charges

Chris Perri

  Photograph by Frank Alcazar used under the Creative Commons Attribution License.

Photograph by Frank Alcazar used under the Creative Commons Attribution License.

In the summer months of Austin, Texas, time seems to stop. Everyone knows the days are long and ridiculously hot. The sun is oppressive, and we are all constantly dripping with sweat. Half of the city is on school break or traveling. Thus, it’s understandable that workdays need Barton Springs swim breaks and margarita-filled happy hours. In this heat-induced and alcohol-infused blur, it’s no surprise that summer is the most common time for people to rack up Public Intoxication (PI) arrests.

Many of us will be intoxicated in public at one point or another, and as long as you aren’t driving or acting in a way that’s unsafe, that’s perfectly legal. However, it is at the discretion of police officers to determine what behavior is deemed dangerous. The Texas Penal Code defines Public Intoxication (PI) as when: “a person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.”

Below, Chris Perri has outlined a few general tips on how to avoid a PI and what to do if you find yourself in the back of a police car.

How to Avoid Getting a PI

  • Don’t overdrink alcohol in public places. As obvious as it may sound, it’s the truth. If you want to keep the party going, move it to your house to minimize the risk of arrest.
  • Avoid aggressive behavior. Police officers most commonly make PI arrests when they see people fighting or on the brink of a physical altercation.
  • Adhere to pedestrian walking laws. If you are walking in the street or not following basic pedestrian laws, a police officer may interpret this as dangerous behavior. If they believe your erratic behavior is the result of drinking alcohol, then you’ll likely be in handcuffs before too long.
  • Walk straight and don’t slur your words. Again, easier said than done, but if you feel yourself getting to this point, it’s a good time to flag down a taxi or call a friend to take you home.
  • Avoid urinating in inappropriate places, AKA non-bathrooms. Believe it or not, this behavior happens frequently and draws attention to law enforcement.

What to Do Once You Are Arrested

If an officer has approached you and seems likely to arrest you for a PI, the best thing you can do is cooperate. Though getting arrested can be scary, remember, a PI is only a Class C Misdemeanor charge that carries no jail time. Likely, they’ll take you to the jail for one night to “sleep it off,” and you’ll be released the next day. However, if you see a judge while in custody, make sure you don’t plead “guilty” or “no contest” without consulting with an attorney. In most cases, skilled attorneys can help you get the charge dismissed and eventually expunged if you are willing to take an educational class and perform community service. However, if you plead guilty, this will lead to a conviction, which will make the crime ineligible for expunction.

The worst thing you can do when getting arrested for a PI is to resist or act aggressively. If you try to resist, you will likely be charged with Resisting Arrest, which is a Class A Misdemeanor that carries jail time and is harder to dismiss. Worst-case scenario: your resisting escalates to an Assault on a Public Servant, which is a felony, and then you’ll still be dealing with the charge when summer is long gone.

If you or a loved one has recently been arrested for a PI or a related charge, call Chris Perri at (512) 917-4378 for advice on how to best navigate the specifics of your case.